Voter inequality under the law

Whether the condition is called “unconstitutional” or “in a state of unconstitutionality,” recent rulings by high courts on the Upper House electoral system appear to be unanimous: The disparity in the value of votes between populous and less populous constituencies has grown so wide that the resulting misrepresentations of voters’ will can be said to be undermining the principle of equality under the law as guaranteed by the Constitution.

The Diet must not waste any time starting work on a fundamental overhaul of the electoral system for the House of Councilors. The Supreme Court has already warned twice that merely adjusting the number of seats between constituencies — as the lawmakers did in time for the election this year — would not do much to correct the huge gap in the value of votes.

In the Upper House election in July this year, some votes still carried as much as 4.77 times the weight of others.

Following the Nov. 28 decision by the Okayama branch of the Hiroshima High Court declaring “invalid” a local constituency result of this year’s Upper House election, the Hiroshima High Court said Thursday that the disparity in the value of votes was “in a state of unconstitutionality” but rejected the plaintiffs’ call to invalidate the election itself.

The rulings were the first two decisions on a total of 14 similar lawsuits filed by groups of lawyers nationwide. Other high courts are scheduled to give their rulings by the end of December and, if they are appealed, the Supreme Court is expected to hand down its decision next year. The courts’ decisions may vary, but some of the principles and facts highlighted in the rulings so far should stand up to the Supreme Court’s scrutiny, and the Diet will need to act in time for the next Upper House election in 2016 — as required under last year’s amendment to the election law.

According to the Okayama branch ruling, equality in vote value is the most basic requirement of an electoral system. It must be ensured that both chambers of the Diet — the supreme organ of state power — appropriately reflect the people’s will. To ensure that the sovereign power rests with the people — as stipulated in the Constitution — it is desirable that the majority opinion of the Diet matches that of the people, the court stated in its Nov. 28 ruling.

The disparity in the value of votes under the current allocation of Upper House seats in prefecture-based constituencies is such that only 35 percent of eligible voters nationwide are choosing a majority of Upper House members elected through constituency races, the ruling pointed out.

The Hiroshima High Court in its Thursday ruling also pointed to the state of “extreme inequality” in the value of votes between constituencies at the time of the July election. However, it stopped short of invalidating the election. An overhaul of the electoral system is a time-consuming process that requires “a highly political judgment,” and the Diet cannot be deemed to have gone beyond the limit of its discretion because it failed to take corrective action in time for the last election, the high court said. Still, the court warned that the disparity could be judged “unconstitutional” if no action is taken by the next Upper House election in 2016.

The gap in the value of votes in Upper House elections has historically been much wider than in the Lower House, where votes in the least populous electoral districts carried around double the weight of those in most populous constituencies.

In the Upper House elections held since the 1980s, the gap in the value vote ranged from 4.86-fold to 6.59-fold, until it was reduced to 4.77-fold in the July election after an amendment last year to the election law, under which seats were reduced in four constituencies and increased in four others.

Half of the Upper House members are elected every three years for a six-year term, and this means that each constituency — one in each of Japan’s 47 prefectures — needs to have at least two seats. It is said that this is one reason why it is difficult to narrow the gap in the value of votes in the Upper House. To do so, seats allocated for populous districts like Tokyo would have to be substantially increased.

In its 2009 and 2012 rulings on past elections, the Supreme Court therefore called for a fundamental overhaul of the Upper House electoral system itself as a solution to the wide gap in the value of votes. The Okayama branch ruling last month accused the Diet of negligence in failing to act for more than three years after the first warning from the top court.

Proposals have been made in the past. In 2010, then Upper House President Takeo Nishioka put together a provisional proposal in which all of the prefecture-based constituencies would be abolished and all members of the chamber would be chosen through proportional representation in nine regional blocs. Currently 146 of the 242 members of the Upper House are chosen through electoral districts and the remaining 96 through nationwide proportional representation votes.

Nishioka’s plan did not move forward after he died in 2011, and no substantive discussion has since taken place for overhaul of the chamber’s electoral system.

Leaders of political parties all agree on the need for an electoral system overhaul, and Liberal Democratic Party officials have indicated they will try to come up with a draft plan through talks between parties by next summer. However, the parties still reportedly disagree on some key points, including whether to maintain the current system of prefecture-based electoral districts.

There is the argument that voters in rural Japan would not have their voices heard in national politics if Diet seats are allocated strictly on the basis of population, giving much more seats to urban constituencies and minimizing the representation of people in rural depopulated areas. But this should not be an excuse for inaction on electoral system reform.

Instead of tinkering with the current election system, the roles of the Upper House in the nation’s bicameral system should be thoroughly reviewed and its electoral system should be made to match its roles.

The two chambers have different powers and mechanisms. The Lower House has supremacy over the upper chamber in matters of government budget and the conclusion of treaties, and can override Upper House opposition to legislation with a two-thirds majority vote. The Lower House can be dissolved by the prime minister anytime during the four-year term of its members. The Upper House cannot be dissolved and the six-year term of its members cannot be cut short.

Such differences should warrant different roles for the Lower House and the Upper House. However, the electoral systems of the two chambers have so far been similar — a combination of constituency races and proportional representation. Members of both chambers tend to behave similarly along party lines, sometimes even raising doubts as to whether the upper chamber is necessary at all if it simply follows the decisions of the more powerful Lower House.

In the divided Diet in recent years, the ruling force in the Lower House often lacked a majority in the Upper House. That ended in the July election, when the Liberal Democratic Party-led ruling coalition regained a majority in both chambers for the first time in six years. Now would actually be a good time to review the appropriate roles of the Upper House and its electoral system.

Looking beyond mere words one might ask exactly would ‘equal constitutionality’ look like given that the context in which any law applies is going to be different. What of people who reject constitutionalism in its entirety as dogmatism harking back to a bygone era?
The greater injustice was the fact that the High Court therein sanctioned extortion as a foundation for political discourse. ‘Numbers’ as the standard of value rather than reasons or rationality. And people wonder why we get the politicking we do.